Madras High Court
Mohamed Mujeebur Rahman vs The State Of Tamil Nadu on 6 June, 2011
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6.6.2011
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.No.1134 of 2011
Mohamed Mujeebur Rahman .. Petitioner
Vs.
1. The State of Tamil Nadu
rep. by its Secretary
Backward and Most Backward
Classes Department
Secretariat, Fort St. George
Chennai 600 009.
2. The Tamil Nadu Wakf Board
rep. by its Chief Executive Officer
Office of the Tamil Nadu Wakf Board
No.1, Jaffar Serang Street
Chennai 600 001.
3. Dr.Hissamuddin Papa
4. Khadeer Ahmed Syed
5. Ameer Bin Obeid
6. Kauser Hussain Papa
7. E.Niyamathullah
8. K.Hassan Ali
9. E.Kalifathullah Sahib
10.Mohamed Fayaz Ali
11.K.H.M.Afzal
12.R.Md. Imran
13.S.Jahangir
14.Mohamed Nayeemur Rahman
15.L.Yusuff Ali
16.Mooza
17.K.Mohamood Hussain
18.G.K.Basha .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the second respondent to restrict its supervisory control over the "Nawab Fazilathunnissa Begum Sahiba Mosque Endowment Chennai" in accordance with the terms and clauses of the scheme decree dated 10.2.1941 made in O.S.No.63 of 1940 on the file of the Principal Judge, City Civil Court, Chennai in all its administrative affairs.
For Petitioner : Mr.M.N.S.Mohamed Habeeb Raja
For Respondents : Mr.K.Balasubramanian
Special Government Pleader
for 1st respondent
Mr.V.Raghavachari
for 2nd respondent
Mr.K.V.Sundarajan
for respondents 3 to 6
Mr.M.L.Denis
for respondents 7 to 9
Mr.P.Satish
for 11th respondent
Mr.T.Rajasekaran
for 14th respondent
Mr.N.Selvaraju
for 16th respondent
Mr.M.K.Hidayathullah
for 17th respondent
ORDER
The writ petition is for a direction against the second respondent, viz., Tamil Nadu Wakf Board, to restrict its supervisory control over the "Nawab Fazilathunnissa Begum Sahiba Mosque Endowment Chennai" only in accordance with the terms and clauses of the scheme decree dated 10.2.1941 made in O.S.No.63 of 1940 on the file of the Principal Judge, City Civil Court, Chennai.
2.1. The Fazilathunnissa Begum Sahiba Mosque Endowment (for brevity, "the Mosque Endowment") is situated in Anna Salai, Nandanam and was dedicated by its ancestor Nawab Fazilathunnissa Begum Sahiba through a Will dated 30.1.1877 and a Codicil dated 2.2.1877. It is stated that the Sub Court, Chengalpattu has framed a scheme for the administration of the Mosque Endowment in the judgment and decree dated 10.2.1941 in O.S.No.63 of 1940 and according to the petitioner, since then the Mosque Endowment has been administered as per the terms of the scheme decree made in the above suit.
2.2. As per the scheme decree, seven trustees should be appointed for the management of the Mosque Endowment and out of the seven trustees, three are to be appointed from the family of the founder and the remaining four trustees will be appointed from among the adult resident applicants of Saidapet and Madras. As per the scheme, the duration of the office of the trustee is five years and the trustee can be removed before the expiry of the period.
2.3. By order dated 13.8.1999 made in Tr.C.M.P.No.7209 of 1999, this Court has transferred the above said scheme suit O.S.No.63 of 1940 from the Sub Court, Chengalpattu to the Principal Judge, City Civil Court, Chennai and thereafter the administration of the Mosque Endowment has been under the control of the Principal Judge, City Civil Court, Chennai, viz., the Scheme Court, which, according to the petitioner, is the ultimate guardian and custodian of the Mosque Endowment.
2.4. Some of the significant terms and clauses of the said scheme framed by the Court are that the mutawalli of the Mosque Endowment is appointed ordinarily for five years and it can even be for a shorter period and he can be removed before the expiry of the period; that leases of the houses, gardens, etc. belonging to the wakf shall not be granted without the prior approval of the Scheme Court; that the mutawalli can spend amounts as per the budget sanctioned and no expenditure in excess shall be made without special sanction of the Scheme Court; and that the mutawalli shall not occupy buildings belonging to the Mosque Endowment.
2.5. It is the case of the petitioner that the Mosque Endowment has been managed and administered in accordance with the terms of the decree for the past 50 years. It is stated that respondents 3 to 6 were appointed by the Sub Court, Chengalpattu as trustees for five years by order dated 20.4.1989 made in I.A.No.7 of 1989. On the expiry of the term of office, they were reappointed for another period of five years by order dated 8.4.1994 made in I.A.No.169 of 1994 and the said five years period has also expired on 7.4.1999. According to the petitioner, in spite of the expiry of the period, the new trustees were not appointed by the Scheme Court and respondents 3 to 6 continued even after the expiry of the term, subjecting the Mosque Endowment to mismanagement and misappropriation.
2.6. The seventh respondent has filed C.M.P.No.2188 of 2003 before the Principal Judge, City Civil Court, Chennai for appointment of new trustees for the administration of the Mosque Endowment. The learned Principal Judge, City Civil Court, Chennai, by order dated 27.10.2006, after enquiry, has appointed respondents 8 to 14 as trustees. While appointing the said respondents, the Scheme Court has also rejected the claim of respondents 3 to 6 for reappointment.
2.7. As against the order of the Scheme Court dated 27.10.2006, respondents 3 to 6 have filed a revision in C.R.P.(NPD) No.1629 of 2006 before this Court with their main grievance that their non selection as trustees and appointment of respondents 8 to 14 as new trustees by the Scheme Court is invalid. The High Court, in the order dated 16.2.2007, has set aside the order of the Scheme Court dated 27.10.2006 appointing respondents 8 to 14 as trustees. The said order was on the basis that after the advent of the Wakf Act, 1995 (for brevity, "Act 43 of 1995"), the power of appointment of mutawalli and administration of the wakf transfers to the Wakf Board and therefore, the Scheme Court has no jurisdiction. The order of this Court dated 16.2.2007 was challenged before the Supreme Court in S.L.P.No.8726 of 2007 and the same was dismissed. The review filed in Review Petition No.886 of 2007 and the Curative Petition No.41 of 2008 were also dismissed by the Supreme Court.
2.8. It is the case of the petitioner that even though in the revision the High Court has set aside the order of the Principal Judge, City Civil Court, Chennai to the effect that the Civil Court has no jurisdiction after the Wakf Board has come into existence, there has been a clear finding that the administration has to be effected as per the scheme. It is his complaint that in spite of such direction no steps have been taken by the Wakf Board in compliance of the said direction given by this Court in the revision, thereby allowing respondents 3 to 6 to continue to be in the office of the trustees illegally.
2.9. The petitioner has also filed petitions on 25.6.2008 and 21.7.2008 before the second respondent Wakf Board to take action against respondents 3 to 6 for misappropriation, etc., which include the illegal and unauthorised construction of a Multi-Specialty Hospital without obtaining permission from the Scheme Court; the occupying of the ground floor of the said hospital building for residential purpose by the third respondent without paying any rent and using first to fourth floors as hospital; the illegal grant of lease of various plots; the illegal allotment of plots; the continuation of respondents 3 to 6 as mutawallis without any valid appointment; and the non submission of accounts, budget estimates, and spending of huge amounts by respondents 3 to 6 against the interest of the Mosque Endowment.
2.10. Since the second respondent has not taken any action, the petitioner along with respondents 7 and 8 have filed C.M.P.No.944 of 2010 in O.S.No.63 of 1940 before the Scheme Court for removal of respondents 3 to 6 from the post of trustees of the Mosque Endowment, in which petition the Wakf Board has been impleaded as the ninth respondent and has failed to appear in spite of the notice issued. It is stated that however the second respondent has issued a public notification calling for applications from the general public for appointment of seven trustees to the Mosque Endowment and according to the petitioner, without taking action against respondents 3 to 6, such conduct of the Wakf Board is in violation of the order of the High Court dated 16.2.2007 passed in the revision.
2.11. It is also stated that the decision of this Court in the revision in respect of its legal position has been altered by a subsequent judgment in Salem Mohammedpura Parimala Sunnath Jammath Masjid Committee, rep. by its Muthavalli v. P.A.Kareem and others, 2008 (2) CTC 492 to the effect that the mere conferment of jurisdiction to the Tribunal under Act 43 of 1995 does not exclude the jurisdiction of the Civil Court for enforcement of civil rights and therefore, according to the petitioner, the order of this Court in the revision and legal position stated therein has been diluted subsequently by the advent of law.
2.12. It is also stated that the Supreme Court also in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC) has taken a stand which is contrary to the decision given by this Court in the revision and therefore, according to the petitioner, the legal position as on date is that the Civil Court has got jurisdiction to try all suits of civil nature except those that are specifically barred under Act 43 of 1995.
2.13. The petitioner has therefore filed the present writ petition on the following grounds:
(i)that by virtue of the march of law, by which the legal position has changed, even after the Wakf Boards have been constituted in terms of Act 43 of 1995, the jurisdiction of the Civil Court, especially the Scheme Court, is not taken away and it is the Scheme Court which has to conduct the election as per the scheme framed on 10.2.1941 in respect of the Mosque Endowment;
(ii)that inasmuch as a petition has already been filed before the Scheme Court for removal of respondents 3 to 6, in which the Wakf Board is one of the respondents, the Wakf Board cannot act as a judge for adjudicating the issue by way of initiating the election process in parallel proceedings;
(iii)that when once the proceedings before the Scheme Court are pending for removal of respondents 3 to 6, unless and until that is completed, since grave allegations have been levelled against them, the parallel proceedings initiated by the Wakf Board for effecting appointment of trustees to the Mosque Endowment is invalid;
(iv)that there is a specific bar under Section 66 of Act 43 of 1995 against the Wakf Board to appoint or remove mutawalli in respect of the wakf governed by a scheme decree framed by the Courts and therefore, the notification issued by the Wakf Board calling for applications for appointment of trustees to the Mosque Endowment is not valid in law;
(v)that the power of the State Government to appoint mutawalli under Section 66 of Act 43 of 1995 cannot be taken way by the second respondent by exercising its power under Section 32(2)(g) of Act 43 of 1995;
(vi)that respondents 3 to 6 have committed gross misappropriation and failed to perform their statutory obligations and, in fact, the High Court in the revision itself has given certain directions which have been grossly disobeyed by the second respondent Wakf Board;
(vii)that the scheme suit pending before the Principal Judge, City Civil Court, Chennai in O.S.No.63 of 1940 is administrative in nature governed by the scheme decree dated 10.2.1941 framed under Section 92 of the Code of Civil Procedure and therefore, neither the Government nor the Wakf Board has any jurisdiction to administer the Mosque Endowment;
(viii)that the second respondent while acting as per the scheme decree in O.S.No.27 of 1940 in respect of another Wakf, viz., Hazrath Thameem Ansari Dargha Wakf Kovalam at Chennai, is attempting to supersede the scheme framed by the Scheme Court in respect of the present Mosque Endowment and therefore, the stand of the Wakf Board is materially inconsistent; and
(ix)that the second respondent should act as per Section 64 of Act 43 of 1995, which imposes a duty to see that proper administration of wakf is effected, especially in respect of appointment and removal of Mutawallis.
3. Even though the second respondent has not filed its counter affidavit, Mr.V.Raghavachari, learned counsel, has filed typed set of papers and made his legal submissions.
4.1. In the counter affidavit filed by respondents 3 to 6, who are holding the post of mutawallis as on date, it is stated that the issue has been finally settled by this Court in the revision in C.R.P.(NPD) No.1629 of 2006, which has been confirmed by the Supreme Court, against which the review petition as well as the curative petition filed were dismissed and therefore, it has been established legally that it is the Wakf Board which is the statutory authority having control over the wakfs, even in respect of the wakfs created by way of scheme.
4.2. As far as the allegations made against respondents 3 to 6 are concerned, the same are denied stating that the Scheme Court itself in the order dated 26.3.2004 has appreciated the work done by respondents 3 to 6 as trustees in improving the Mosque Endowment and therefore, according to them, unwarranted allegations have been made against them.
4.3. It is stated that the Fazilathunnissa Begum Sahiba Mosque Endowment was formed to fulfill the sole intention of the founder's Will dated 30.1.1877 with a schematic method of smooth, faithful and perfect management, administration and functioning of the trust. While it is admitted that the scheme was framed by the Sub Court, Chengalpattu on 10.2.1941 and that the same is binding on everyone, it is stated that as per the clause in the scheme the third respondent was appointed as public trustee of the Trust and he took charge as Executive Trustee from 15.12.1995 and is acting as per the Will.
4.4. It is stated that the lease granted in his favour by the Court was extended in I.A.No.36 of 1997 for a period of 50 years and in accordance with the scheme, respondents 3 to 6 have been faithfully discharging their functions by donating their personal funds and the accounts have been maintained and the Assistant Director, Local Fund Audit, Ripon Building, Chennai has made a detailed audit inspection of the trust in the field of accounting, administration and management and has issued an Audit Inspection Certificate along with Audit Inspection Report up to March, 2010.
4.5. It is stated that while things stood so, three petitions were filed by the seventh respondent before the Scheme Court for appointment of Auditor, appointment of Receiver and appointment of Trustees and the Principal Judge, City Civil Court, Chennai, in the order dated 26.3.2004, has rejected all those applications and thereafter, following the procedure, the Scheme Court has appointed the trustees in the order dated 27.10.2006.
4.6. It is stated that it was challenging the said order dated 27.10.2006 a revision in C.R.P.(NPD) No.1629 of 2006 was filed before this Court and this Court, holding that the Wakf Board alone has the power to appoint new trustees and the order of the Wakf Board can be challenged before the Wakf Tribunal, has set aside the order of the learned Principal Judge, City Civil Court, Chennai and gave a direction to the Wakf Board to make necessary advertisement giving opportunity to all persons, including those who have already applied before the Principal Judge, City Civil Court, Chennai, and to act in the best interest of the wakf, directing that till then status quo prevailing as on that date shall continue.
5.1. In the counter affidavit filed by respondents 7 and 8, while supporting the stand of the petitioner, it is stated that in the application filed before the Scheme Court in C.M.P.No.2188 of 2003, the Scheme Court had called for applications for appointment of mutawallis, conducted election process and appointed seven new mutawallis, who are respondents 8 to 14, and the claim of respondents 3 to 6 was rejected on the ground of mal-administration by order dated 21.10.2006 and aggrieved by the same, respondents 3 to 6 have filed the revision in C.R.P.(NPD) No.1629 of 2006 before this Court and this Court has set aside the order of the learned Principal Judge, City Civil Court, Chennai, against which the Special Leave Petition filed was dismissed.
5.3. It is stated that even though in the revision an order was passed on 16.2.2007 directing to complete the election process, the second respondent is unable to take any action in accordance with the scheme and therefore, respondents 7 and 8 have filed C.M.P.No.944 of 2010 before the Principal Judge, City Civil Court, Chennai for removal of respondents 3 to 6, in which the Wakf Board is one of the respondents and the said petition is still pending. It is stated that the second respondent - Wakf Board, which has failed to act as per the direction given in the revision, has also not chosen to appear before the Scheme Court.
5.4. It is stated that it is not necessary for the Wakf Board to take the burden of conducting the election for appointment of mutawallis, since the scheme itself contemplates a method and the Scheme Court will follow the same.
5.5. It is stated that even as per Section 7(5) of Act 43 of 1995, with regard to any dispute which is the subject matter of a suit, the jurisdiction of the Wakf Board is excluded and therefore, the Wakf Board need not have the supervisory jurisdiction over the present wakf.
5.6. It is stated that the bar of Civil Court jurisdiction under Section 85 of Act 43 of 1995 is not an absolute bar and it is only in cases where the issue involved is to be decided by a Wakf Tribunal such a bar is imposed and as far as the scheme decree is concerned, there is nothing for the Tribunal to decide.
6.1. In the counter affidavit filed by the ninth respondent, who is the direct descendant of Nawab Fazilathunnissa Begum Sahiba the founder of the Fazilathunnissa Begum Mosque Endowment, it is stated that he was earlier appointed as mutawalli. It is stated that the Mosque Endowment was found by Nawab Fazilathunnissa Begum Sahiba, one of the daughters of Nawab Wallajha of Carnatic, and it was as per the Will and Codicil written by her the scheme was framed by the Sub Court, Chengalpattu, which was subsequently transferred to the file of the Principal Judge, City Civil Court, Chennai.
6.2. It is stated that in C.M.P.No.2188 of 2006, after the expiry of the tenure of appointment of respondents 3 to 6 as early as 7.4.1999, seven new mutawallis were appointed and against that revision was filed in which the appointment was set aside and the appeal before the Supreme Court was also dismissed and in these circumstances, respondents 3 to 6, whose term has already come to an end much earlier, have been taking advantage and are indulging in misappropriation of the properties of the Mosque Endowment. It is stated that it was in those circumstances an application in C.M.P.No.944 of 2010 was filed by respondents 7 and 8 before the Principal Judge, City Civil Court, Chennai for removal of respondents 3 to 6, which is pending.
6.3. It is also stated that while in the revision it was held by this Court that the Civil Court has no jurisdiction, the same learned Judge in another case reported in Samuthra Vijaya Nainar and others v. Sirukadambur Masjid, rep. by its Muttavallis and others, [2007] 4 MLJ 580 has held that cases which are pending before the Civil Court shall continue to be tried in the Civil Court in spite of Section 85 of Act 43 of 1995. Therefore, according to the ninth respondent, Section 85 of Act 43 of 1995 cannot be a bar to the Principal Judge, City Civil Court, Chennai to function as a Scheme Court. It is stated that the Civil Court jurisdiction is not ousted by Section 85 of Act 43 of 1995 in the absence of any provision about the scheme decree in Act 43 of 1995.
6.4. He also relied upon various judgments of the High Court, apart from the decision of the Supreme Court in Sardar Khan and others v. Syed Najmul Hasan (Seth) and others, 2007 [2] CTC 508 to substantiate that as per Section 7(5) of Act 43 of 1995, the pending scheme suit which was filed before the Civil Court before enforcement of Act 43 of 1995 shall continue to be governed by the Civil Court only.
6.5. It is stated that the power exercisable by the Scheme Court cannot be vested with the second respondent - Wakf Board constituted under Section 13 of Act 43 of 1995 and the Wakf Board cannot act as a Scheme Court, especially when the Court has already framed a scheme.
7. In the counter affidavit filed by the fourteenth respondent, who is the brother of the petitioner, it is stated that he has been actively working for the benefit of the Mosque Endowment and inasmuch as the petitioner has not claimed any relief against respondents 7 to 18, he has in effect supported the case of the petitioner, even though it is stated that he has no conflicting interest.
8. The sixteenth respondent, while supporting the case of the petitioner, has stated that he has nothing to do with the issue involved, however he has been unnecessarily made as a party.
9.1. It is the contention of Mr.M.N.S.Mohamed Habeeb Raja, learned counsel for the petitioner that even though the revision has set aside the order of the Civil Court appointing respondents 8 to 14 as mutawallis and that has been confirmed by the Supreme Court, inasmuch as by a subsequent Supreme Court judgment in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC) it has been categorically held that the Civil Court jurisdiction is not ousted by virtue of conferment of powers on the Wakf Board, the ratio decidendi arrived at by this Court in the revision is not a correct law and moreover the same was confirmed by the Supreme Court not by considering the issue on merits.
9.2. According to him, there is no res judicata against him, especially when the law itself has changed, by relying upon the judgment in Kunhayammed and others v. State of Kerala and another, [2000] 6 SCC 359.
9.3. The dismissal of the Special Leave Petition, according to the learned counsel for the petitioner, without going into the merits is not a bar to file a fresh petition and therefore, the principle of res judicata has no application by relying upon Nand Kishore v. State of Punjab, [1995] 6 SCC 614.
10. Likewise, the learned counsel appearing for the seventh respondent, Mr.M.L.Denis, would reply upon the decision in Sardar Khan and others v. Syed Najmul Hasan (Seth) and others, 2007 [2] CTC 508 to substantiate that as per Section 7(5) of Act 43 of 1995, the pending scheme suit which was filed before the Civil Court before enforcement of Act 43 of 1995 shall continue to be governed by the Civil Court only.
11.1. Mr.M.K.Hidayathullah, learned counsel for the seventeenth respondent would submit that the principle of res judicata is not applicable to the present case by relying upon Kunhayammed and others v. State of Kerala and another, [2000] 6 SCC 359 and Gangadhara Palo v. The Revenue Divisional Officer and another, 2011 [2] CTC 451.
11.2. It is his submission that the Wakf Board has nothing to do with the conducting of the religious functions and it is only concerned about the administrative matters.
11.3. He would also refer to various Islamic literature to insist upon the five pillars of Islam, including the worship for five times, belief in Prophet, Haj Pilgrimage, Ramzan fasting, etc. 11.4. It is his submission that when the second respondent - Wakf Board is taking a partisan attitude in respect of the maintenance of the wakf concerned, which is one of the premier wakfs in the city of Madras, even in all fairness the conducting of election by the Scheme Court will be just and proper to ensure impartiality.
12.1. Per contra, it is the contention of Mr.V.Raghavachari, learned counsel appearing for the second respondent - Wakf Board, that inasmuch as the decision of this Court in the revision has become final, which has been confirmed by the Supreme Court, especially when the review petition as well as the curative petition have also been dismissed, one has to act only as per the order passed by this Court in the revision and this Court has categorically held that only the Wakf Tribunal is entitled to decide about the disputes and in such circumstances, while it is true that the wakf concerned has to act only as per the scheme framed by the Civil Court, the administration cannot be vested with the Civil Court, since after the advent of Act 43 of 1995 the Civil Court jurisdiction has been barred.
12.2. It is his submission that when a statutory authority like the Wakf Board has been created and there is a Wakf Tribunal constituted as per Act 43 of 1995, it is certainly not open to the petitioner to contend otherwise. He would also refer to the judgment of the Supreme Court in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC) and state that the same is not applicable to the facts of the present case.
12.3. It is his submission that Section 7(5) of Act 43 of 1995 does not relate to scheme suit and that relates to transitory provision.
12.4. It is his submission that the principle of res judicata will apply between the parties to the proceedings by relying upon K.K.Modi v. K.N.Modi and others, [1998] 3 SCC 573, apart from AIR 1994 Madras 14.
12.5. Even under the scheme there is no exclusion of Wakf Board and he would rely upon the decision in W.P.No.28975 of 2008 to contend that the Wakf Board jurisdiction is not ousted. Therefore, according to him, after Act 43 of 1995 has come into existence, being a statutory creature, all the powers in respect of the administration of the Wakf are transformed to the Wakf Board, which is an elected body and between the parties that was the decision given in the revision also and now the parties cannot rescind and the same is binding on them.
13. Similarly, Mr.K.V.Sundarajan, learned counsel appearing for respondents 3 to 6, would submit that the appointment of respondents 3 to 6 was as per the scheme. He would submit that even though in the revision the subsequent appointment made in respect of respondents 8 to 14 was set aside, a direction was given to the Wakf Board to conduct election and till such election is conducted status quo was directed to be continued and respondents 3 to 6, who continue to be the mutawallis, are performing their functions in a proper manner.
14. I have heard the learned counsel for the petitioner and the respondents and given my anxious thought to the issue involved in this case.
15.1. For better appreciation of the issue involved, it is necessary to narrate concisely some of the cardinal principles connected herewith.
15.2. The concept of Wakf historically is traceable to the instructions of the Prophet Himself. The term "Wakf", which has its origin in the Arabic Verb "Waqafa" means "to detain" or "to hold or to tie-up". The person creating a Wakf is called "Wakif". Anciently, when II Khalif Hadrat Umer acquired a piece of land in Khaiber and asked Prophet Mohammad how to make best pious use of the same, the Prophet said, "Tie up the property (corpus) and devote the usufruct to the welfare of human beings, and it is not to be sold or made the subject of gift or inheritance, devote its produce to your children, your kindred and the poor and in the way of Allah". There are versions which attribute the institution of Wakfs dating back to Prophet Himself and, in fact, the Prophet created Wakf of his own property and advised his companion to create Wakf of his garden.
15.3. Therefore, creation of Wakf in Mohammedan System is the command of the God, which is the very basis of the noble belief, as Joseph Schacht in his book "Early Doctrines of Wakf" described "The origin of the institution of Wakf cannot be traced to any single source. It is, as Heffening and Santolina have seen, the result of combination of several factors and various elements which were intimately fused during the formative period of Mohammedan Law".
15.4. Before the advent of the Wakf Validating Act, 1913 in India since there was no codified law, the law laid down by the Mohammedan jurists and accepted by the Courts in India and Privy Council were followed. When the concept of Wakf started codification in India, the Bengal Wakf Act has defined "Wakf" as "a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes wakf by user".
15.5. Controversy arose over private wakf, what is known as wakf-al-al-aulad. While relating to Hanifa a Wakf made by a person for himself, or for the mothers of his children, or for his own children, or a Wakf of mushaa was lawful, which was accepted to be the rule of Hanafis, there was a difference by Shiahs and Shafeis, in the sense that in Hanafis doctrine, the Wakif may reserve the entire produce of the wakf property for his benefit during his life time, constituting himself as a primary beneficiary of the trust, and according to Shiahs and Shafeis, the Wakif can, if he is the mutawalli, receive the allowance reserved for the trustee. It is stated that Mohammed agreed with the Shiahs and Shafeis to the effect that the Wakif cannot reserve for himself the entire produce of the Wakf during his lifetime.
15.6. However, the Privy Council has given a different version to the effect that when the benefits of the charity or religion were either illusory or postponed indefinitely, it will be hit by the rule against perpetuities. It was these contradictions which resulted in the passing of the Mussalman Wakf Validating Act, 1913 defining the term "wakf" to mean "the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman Law as religious, pious or charitable", thereby giving wider meaning to the word "Wakf".
15.7. Thereafter, the Mussalman Wakf Act, 1923 was enacted calling the mutawallis to account before the District Judge and in the words of Hidayatullah,J. "after the passage of these two Acts, wakfs, in which the object was the aggrandisement of families of wakifs without a pretence of charity in the ordinary sense, became valid and operative". Since the District Judge had no machinery to give effect to the obligation of mutawallis to submit audited accounts as per the Mussalman Wakf Act, 1923, various State Governments have enacted laws, viz., Bengal Wakf Act, 1934, U.P.Muslim Wakfs Act, 1936, Bihar Wakf Act, 1947, and in Bombay they had the Central Act, 1923 amended in 1935 by the Mussalman Wakf (Bombay Amendment) Act, 1935.
15.8. Since the Mussalman Wakf Act, 1923 was not uniformly followed by all the States, it resulted in the passing of the Central Wakf Act, 1954, by which a more positive role has been assigned to the State Wakf Boards, thus transforming the Wakf Boards from mere instruments of administrative supervision to creative organs for educational, social, economic and cultural renaissance. Even after the passing of the said Act, it was felt that the powers are periodically given by way of amendments to the nominated Boards to interfere and intervene in the matters relating exclusively to the personal law of a community, which was a major concern.
15.9. The Wakf Act, 1954 was, therefore, amended thrice in 1959, 1964 and 1969 and on the basis of the recommendations of the Wakf Inquiry Committee set up in December, 1970, the Wakf (Amendment) Act, 1984 was enacted to enquire into administration of Wakfs at all levels and except two provisions, viz., (i) increasing the period of limitation for filing of suits in respect of the Wakf property in adverse possession from 12 years to 30 years; and (ii) application of the provisions of the Wakf Act, 1954 to the evacuee properties, all other provisions were severely criticised, especially relating to the power of the Wakf Commissioner, which was superior to the Wakf Board. The Wakf (Amendment) Act, 1984 was also denunciated for the reason that it interferes with the day to day management and administration of the Wakfs by the Trustees and mutawallis of the wakfs.
15.10. It was thereafter the present Act 43 of 1995 was enacted with the following significant features:-
"(a) Wakf Boards for the States and for the Union territory of Delhi shall have not less than 7 and not more than 13 members of which the majority will comprise such persons as are elected from amongst Muslim Members of Parliament, Muslim Members of State Legislatures, Muslim Members of the Bar Council in a State and Mutawallis of wakfs having an annual income of Rs.1 Lakh or more. The nominated members will be from Muslim organisations of State eminence, recognised scholars in Muslim Theology and a representative of the State Government not below the rank of Deputy Secretary. In a State where there are Shia wakfs but no separate Shia Wakf Board, at least one of the Members shall be a Shia Muslim. A smaller Wakf Board is envisaged for Union territories other than Delhi.
(b) The other important feature is about distribution of powers between the Wakf Board and the Wakf Commissioner which would now be redesigned as the Chief Executive Officer and would be subordinate to the Wakf Board.
(c) Provisions are also being made for appointment of the Executive Officer in respect of wakfs whose performance is not satisfactory and whose annual income is Rs.5 Lakhs or more.
(d) To strengthen the finances of the Wakf Board, one of the measures being contemplated is to raise the rate of the contribution by a Wakf to the Wakf Board from 6 per cent of its annual income to 7 per cent.
(e) It is also intended to put certain restrictions on the powers of Mutawallis in the interest of better management of wakf properties.
(f) An important provision in the proposed Bill relates to setting up of Wakf Tribunals to consider questions and disputes pertaining to wakfs.
(g) There are instances of misuse of wakf properties either with or without the connivance of the Mutawallis. It is now proposed to incorporate in the Bill a provision so that the alienation of wakf properties will not be easy.
(h) At present, the Wakf Act, 1954 is not applicable to Uttar Pradesh, West Bengal, parts of Gujarat, parts of Maharashtra and some of the North Eastern State. With the enforcement of this legislation, there will be uniformity in respect of wakf administration throughout the country except in Jammu and Kashmir State."
15.11. On an overall appraisal of the entire situation, it is clear that in spite of various amendments and repeals, even as on date, as per Act 43 of 1995, the basic concept of dedication of the property for God, which is the basis of the Mohammedan System of belief universally, remains intact, except to regulate the administration of Wakfs, including the restriction of mutawallis or resolution of disputes by Wakf Tribunal, and in respect of disputes regarding Wakfs, it must be with a strict sense of mind that the misuse of wakf properties is totally opposed to the concept of belief in God, which is an unshakable faith of a true Mohammedan.
15.12. Keeping in mind the said avowed object of one of world's largely followed religions, with pious obligation as the basis, the issue involved in this case has to be approached.
16. Section 4 of Act 43 of 1995 enables the State Government, by official notification, to appoint a Survey Commissioner and other Additional or Assistant Survey Commissioners as may be necessary to survey the wakfs which are existing in the State as a preliminary step and after the Commissioner submits his report, after conducting enquiry, to the State Government, the State Government may, by notification in the official gazette, order second or subsequent survey by the Survey Commissioner, of course within twenty years from the date on which the report in relation to the previous survey was submitted and ultimately, on receipt of the report of the Survey Commissioner consisting the following particulars:
(a) the number of wakfs in the State showing the Shia wakfs and Sunni wakfs separately;
(b) the nature and objects of each wakf;
(c) the gross income of the property comprised in each wakf;
(d) the amount of land revenue, cesses, rates and taxes payable in respect of each wakf;
(e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and
(f) such other particulars relating to each wakf as may be prescribed, the same shall be forwarded by the State Government to the Wakf Board.
17. The Wakf Board is created as a body corporate under Section 13 of Act 43 of 1995 by notification in the official gazette and the composition of the Board is stipulated under Section 14(1) of the Act, which is as follows:
"Section 14.Composition of Board:
(1) The Board for a State and the Union territory of Delhi shall consist of-
(a) a Chairperson;
(b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of-
(i) Muslim Members of Parliament from the State or, as the case may be, the Union territory of Delhi,
(ii) Muslim Members of the State Legislature,
(iii) Muslim Members of the Bar Council of the State, and
(iv) Mutawallis of the wakfs having an annual income or rupees one lakh and above;
(c) one and not more than two members to be nominated by the State Government representing eminent Muslim organisations;
(d) one and not more than two members to be nominated by the state Government, each from recognised scholars in Islamic Theology;
(e) an officer of the State government not below the rank of Deputy Secretary."
The election of the members of the Wakf Board is by proportional representation. The qualification of the members of the Wakf Board and the provision for removal of the members of the Wakf Board have been prescribed. It is relevant to point out that the Wakf Board thus created under Act 43 of 1995 is a statutory creature, being a body corporate, only for the purpose of administering the wakfs notified by the Government and they are not entitled to interfere with the religious functions and they cannot be deemed to be a religious denomination as per Article 26 of the Constitution of India.
18. The functions of the Wakf Board are given in Section 32(2) of Act 43 of 1995, which is as follows:
"Section 32. Powers and function of the Board:
(1) *** (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-
(a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every wakf;
(b) to ensure that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were intended or created;
(c) to give directions for the administration of wakfs;
(d) to settle schemes of management for a wakfs;
Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard;
(e) to direct-
(i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf;
(ii) in what manner the income of a wakf, the objects of which are not evidence from any written instrument, shall be utilized,
(iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community:
Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard.
Explanation: For the purpose of this clauses, the powers of the Board shall be exercised-
(i) in the case of a Sunni wakf, by the Sunni members of the Board only; and
(ii) in the case of a Shia wakf, by the Shia members of the Board only:
Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not e exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause;
(f) to scrutinise and approve the budgets submitted by mutawallis and to arrange for the auditing of account of wakfs;
(g) to appoint and approve and remove mutawallis in accordance with the provisions of this Act;
(h) to take measures for the recovery of lost properties of any wakf;
(i) to institute and defend suits and proceedings relating to wakfs;
(j) to sanction any transfer of immovable property of a wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act:
Provided that no such sanction shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction;
(k) to administer the Wakf Fund;
(l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the wakf property as the Board may, from time to time, require;
(m) to inspect, or cause inspection of, wakf properties, accounts, records or deeds and documents relating thereto;
(n) to investigate and determine the nature and extent of wakf and wakf property, and to cause, whenever necessary, a survey of such wakf property;
(o) generally do all such acts as may be necessary for the control, maintenance and administration of wakfs."
19. In addition to that, under Section 32(1) of Act 43 of 1995, the State Government is having a general power of superintendence of all wakfs in the State which are vested with the Board, subject to the rule making powers of the State to ensure that the wakfs under its superintendence are properly maintained, controlled and administered. Section 32(1) of Act 43 of 1995 is as follows:
"Section 32. Powers and function of the Board:
(1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall best in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are property maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended:
Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the school of Muslim law to which the wakf belongs.
Explanation:- For the removal of doubts, it is hereby declared that in this sub-section, "wakf" includes a wakf in relation to which any scheme has been made by any court of law, whether before or after the commencement of this Act."
Therefore, it is abundantly clear that power of superintendence of the State Government conferred under Section 32(1) of Act 43 of 1995, or the power of the Wakf Board under Section 32(2) of Act 43 of 1995, are all to be exercised in conformity with the terms of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the school of Muslim law to which the wakf belongs. Otherwise, the Wakf Board performs the administrative function of proper maintenance and supervision of various wakfs in respect of their administration, including the settlement of scheme for management of a wakf. After the advent of Act 43 of 1995, the settlement of schemes regarding the management of wakfs lies with the Wakf Board.
20. Section 112 of Act 43 of 1995, which speaks about the repeal and savings and is as follows:
"Section 112.Repeal and savings:
(1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.
(3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed:
Provided that such repeal shall not effect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken."
specifically saves all actions taken before the Act came into existence and in the proviso, it makes it clear that all actions taken are deemed to have been taken as per the provisions of Act 43 of 1995.
21. After coming into force of Act 43 of 1995, any dispute regarding wakf is to be decided by the Tribunal, whose decision is final. The disputes regarding wakfs are stated in Section 6 of Act 43 of 1995 as follows:
"Section 6.Disputes regarding wakfs:
(1) if any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit as a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.
Explanation: For the purposes of this section and section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4.
(2) Notwithstanding anything contained in sub-section (1),no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of appeal or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.
(4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.
(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1)."
A reading of the said provision makes it clear that the proceedings under the Act cannot be stayed in respect of the wakf because of the pendency of any suit or appeal, which means that in spite of the pendency of the suit or appeal elsewhere, the proceedings in the Tribunal is undeterred.
22. The Tribunal is constituted under Section 83 of Act 43 of 1995 by the State Government by issuing necessary notification. The State Government is empowered to define the local limits, jurisdiction of each of such Tribunals, the procedure to be followed and its powers, specifying that such decision of the Tribunal is final and there is no appeal, except of course the powers of the High Court. Section 83 of Act 43 of 1995 is as follows:
"Section 83.Constitution of Tribunals, etc:
(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.
(2) Any mutawalli person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf.
(3) Where any application made under sub-section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:
Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.
(4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.
(5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a suit, or executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908, (5 of 1908) the Tribunal shall follow such procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.
(8) The Execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908.
(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."
23. The bar of Civil Court jurisdiction is under Section 85 of Act 43 of 1995, which is as follows:
"Section 85. Bar of jurisdiction of civil courts:
No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal."
and that imposes a bar on any Civil Court to entertain any dispute which relates to wakf or wakf property or any other matter which is to be decided under Act 43 of 1995.
24. The Government of Tamil Nadu in G.O.Ms.No.56, C.T. and R.E., dated 14.2.1997, has issued the Tamil Nadu Wakf Board (Conduct of Election for Members) Rules, 1997 in furtherance of the rule making power conferred under Section 109 read with Section 14(2) of Act 43 of 1995.
25. The term "mutawalli" is defined under Section 3(i) of Act 43 of 1995 as follows:
"Section 3 (i): "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanshin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any persons, committee or corporation for the time being managing or administering any wakf or wakf property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation"
The said provision makes it amply clear that mutawalli is only to manage and administer the wakf property in terms of the instrument of wakf.
26. Now coming to the facts of the present case, one Fazilathunnisa Begum Sahiba, daughter of Nawab Walaja under her Will dated 30.1.1877 has appointed her full brothers' sons, viz., (i) Mohammed Ameenkhen Hussain Khan Bahadur, (ii) Khader Ali Khan Bahadur, (iii) Ghulam Hassan Ali Miyan, (iv) Ghulam Auzam Ali Miyan, (v) Ghulam Jeelani Miyan and her own servants, viz., (vi) Mohammed Namdar, and (vii) Mer Hussain Ali Khan Bahadur, as Mutawallis of the Trust and dedicated the lands mentioned thereunder, with the endowments of doing Fathkha Ceremonies during ten days of holding Mohamrram viz., (i) the Fathikha Ceremony, (ii) The Fathkha of Huzuruth Imam Hussain, the Martiyur of Kerbala and on 11th day of Safar, (iii) The Fathkha of Founder's deceased Mother Dowlathunnisa Begum and on 19th day of the month Zee Hajja, and (iv) The Fathikha of the Founders deceased brother Abu, Tuyrab Khan Bhadur Shujaeth Jung.
27. In the Codicil executed by her on 2.2.1877, the founder has also added the Fathikha Ceremony of the founder herself to be continued by the seven trustees appointed by her. Based on the Will, when the Sub Court, Chengalpattu, which was then having jurisdiction of Saidapet, was approached, a scheme was framed for the trust in O.S.No.63 of 1940 by the decree and judgment dated 10.2.1941. As per the Scheme Decree and also as per the Codicil seven mutawallis are to be appointed for the management and administration of the Trust, out of them three shall be from the family of the founder and the remaining four mutawallis shall be appointed from among the applicants and adult residents of Saidapet and Madras, and the term of each mutawalli shall ordinarily be five years and the court can on proper reason remove any mutawalli from the office before the said period of five years and appoint another person in his place. Among the seven mutawallis, one shall be the Executive mutawalli, who shall ordinarily hold office for a period of three years and be eligible for re-election.
28. The scheme framed by the Civil Court on 10.2.1941 is based on the Will of the testatrix, thereby creating a trust in the form of a wakf named "Fazilathunnissa Begum Sahiba Mosque Endowment" and the Mosque Endowment has, in effect, become a wakf within the meaning of Explanation to Section 32(1) of Act 43 of 1995, elicited above.
29. It is not in dispute that the Mosque Endowment is a registered wakf and even otherwise, under Section 36(1) of Act 43 of 1995, the registration with the Wakf Board has become mandatory. In any event, under Section 32(1) of Act 43 of 1995, the power of superintendence of wakfs vests with the Wakf Board or the State Government.
30. But, it appears that, by virtue of the order passed in Tr.C.M.P.No.7209 of 1999, the suit in which the scheme decree was framed stood transferred from the Sub Court, Chengalpattu to the City Civil Court, Chennai and in these years, as per the scheme decree, seven mutawallis were appointed as per the orders of the Civil Court. Even though by virtue of Act 43 of 1995, which was originally of the year 1954, the power to appoint mutawallis has been vested on the Wakf Board, it appears that nobody has questioned or noticed the same.
31. However, when the seventh respondent has moved the Principal Judge, City Civil Court, Chennai by filing C.M.P.No.2188 of 2003 in the scheme suit O.S.No.63 of 1940 for appointing new executive committee members of the Mosque Endowment, on the basis that the term of appointment of respondents 3 to 6 has expired much earlier in the year 1999 itself, applications were invited by advertisement and on receipt of 44 applications, after thorough scrutiny and personal hearing, the Principal Judge, City Civil Court, in the order dated 27.10.2006, has appointed respondents 8 to 14 as mutawallis of the said wakf.
32. That order was challenged before this Court by respondents 3 to 6 by filing C.R.P.(NPD) No.1629 of 2006 mainly on the ground that after the enactment of Act 43 of 1995, the Civil Court jurisdiction has been ousted and that was contested by respondents 8 to 14 on the basis that the scheme suit being a suit under Section 92 of the Code of Civil Procedure, the order of the Civil Court is sustainable.
33. After referring to plethora of decisions about the jurisdiction of the Civil Court to interfere in the matters relating to the wakf, this Court having held that Act 43 of 1995 is a self-contained code and that any dispute relating to the wakf has to be decided by the Tribunal constituted under Act 43 of 1995 and there has been a specific bar of jurisdiction of the Civil Court under Section 85 of Act 43 of 1995 relating to any wakf or wakf property or any other matter which is required to be decided by the Tribunal and having found that even though under the Wakf (Amendment) Act, 1984 there was no notification excluding Section 92 of the Code of Civil Procedure, subsequently under Act 43 of 1995, in Explanation to Section 32(1), it has been explicitly made clear that even a scheme made by the Civil Court is included as a wakf and that the settlement of scheme is within the purview of the Wakf Board, has allowed the revision by setting aside the order of the Principal Judge, City Civil Court, Chennai and directed the Wakf Board to make necessary advertisement for the purpose of electing trustees and ordered that till such decision is taken status quo shall be maintained. The operative portion of the order is as follows:
"37. In the facts and circumstances of the case, and in view of the clear position of law, the Wakf Board is directed to make necessary advertisements in one of the leading English Daily and two leading Tamil Dailies circulated in Chennai city and Saidapet Taluk calling for applications from the interested persons belonging to Muslim community residing at Madras or Saidapet Taluk to be appointed as Trustees and shall give fair opportunity to all such applicants including those who have already applied before the Principal Judge, City Civil Court, Chennai despite their being selected or rejected, and take a decision by conducting a detailed enquiry in respect of the merits and demerits of the candidates which will suit to the best interest of the Wakf. Till then, the status quo prevailing as on date will be continued."
34. The said order was questioned by the seventh respondent and others in the Supreme Court, which came to be dismissed in the admission stage on 9.7.2007, as follows:
"We see no reason to interfere. The special leave petition is dismissed."
Thereafter, the review filed by the seventh respondent came to be dismissed and ultimately, the curative petition filed by him in Curative Petition (C) No.41 of 2008 also was dismissed by the Five Judge Bench of the Supreme Court on 30.4.2008, as follows:
"We have perused the petition and the connected papers. In our view, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Anr., 2002 (4) SCC 388. Hence, the curative petition is dismissed."
35. It is no doubt true that the Supreme Court in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC) has held that even though Section 85 of Act 43 of 1995 is wider, barring the Civil Court jurisdiction, such bar of jurisdiction is only subject to the matters which are required by Act 43 of 1995 to be determined by the Tribunal and if the subject matter is not falling within the purview of the powers vested with the Tribunal, in that event, the Civil Court jurisdiction is not taken away. That was the decision taken by the Supreme Court while deciding about the question of eviction of a tenant holding a wakf property under the Wakf Board and when a stand was taken by the Wakf Board that the Civil Court jurisdiction has been taken away under Section 85 of Act 43 of 1995, the Supreme Court has held that the jurisdiction of the Civil Court to try suits of civil nature is very expansive except in exceptional cases where the statute specifically excludes such jurisdiction and such exception cannot be inferred. The Supreme Court, having confirmed that for any matter which is determinable as per Act 43 of 1995, either as per the nature of the wakf, etc., the Tribunal is the authority, has held that there is no provision under Act 43 of 1995 providing for any proceedings before the Tribunal for determination of a dispute concerning the eviction of tenant of wakf property or the rights and obligations of the lessor and the lessees of such property and held that a suit for eviction of a tenant could be filed only before the Civil Court and not before the Tribunal. The Supreme Court has held as follows:
"18. ..... Section 85 of the Act clearly bars jurisdiction of the Civil Courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred."
and ultimately, decided as follows:
"22. In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed."
Inasmuch as the said decision is relating to eviction of a tenant, it was held by the Supreme Court that the dispute or question does not fall within the four corners of the powers vested in the Tribunal and the jurisdiction of the Civil Court is not barred. The said judgment is certainly not applicable to the facts of the present case.
36. The reliance placed on Section 7(5) of Act 43 of 1995, which is as follows:
"Section 7.Power of Tribunal to determine disputes regarding wakfs:
(1) to (4) *** (5) The Tribunal shall not have jurisdiction by reason to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.", which debars the Tribunal from exercising jurisdiction in respect of the subject matter of any suit commenced in a Civil Court under Section 6(1) of Act 43 of 1995, has also no application to the facts of the present case. The reason is that Sections 6 and 7 of Act 43 of 1995 relate to survey of wakfs at the initial stage. The Act 43 of 1995, while repealing the Wakf Act, 1954 as well as the Wakf (Amendment) Act, 1984, validates any action and specifically treats those actions taken earlier as that of the action taken under Act 43 of 1995, as it is seen under Section 112(3) of Act 43 of 1995, extracted above.
37. In any event, as stated above, the said Sections 6 and 7 of Act 43 of 1995 are applicable to the preliminary stages of making of survey of wakfs and notifications made and if any dispute is raised to the effect that while making the survey a non wakf property is sought to be categorised as wakf property and if such owner goes to the Civil Court, the Civil Court jurisdiction is maintained and that is not the case before this Court on the facts of the present case.
38. Again, the attempt made by the learned counsel for the petitioner to state as if the learned Judge who has decided the revision in C.R.P.(NPD) No.1629 of 2006 holding that the Civil Court has no jurisdiction in respect of the matters stipulated under Act 43 of 1995 which have to be decided by the Wakf Tribunal, has taken contrary view in Samuthra Vijaya Nainar and others v. Sirukadambur Masjid, rep. by its Muttavallis and others, [2007] 4 MLJ 580, is nothing but a misnomer. As held by the Supreme Court in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC), elicited above, the learned Judge in Samuthra Vijaya Nainar case was considering a matter pertaining to recovery of possession in respect of a tenant of a wakf property and in those circumstances held that Section 85 of Act 43 of 1995 is not a bar for a tenant against whom a suit was filed by the Wakf Board for declaration and recovery of possession, the proceedings which have commenced prior to the enactment of Act 43 of 1995. Therefore, there is certainly no contradiction in the view of the learned Judge as attempted to be focused by the learned counsel for the petitioner.
39. The further reliance placed on a judgment of a learned Judge of this Court in Salem Mohammedpura Parimala Sunnath Jammath Masjid Committee, rep. by its Muthavalli v. P.A.Kareem and others, 2008 (2) CTC 492 also relates to a case of a tenant of a wakf property who has filed a suit for permanent injunction restraining the Wakf Board from interfering with its possession. It was in that context held that one has to consider the intention of Act 43 of 1995, which is a self-contained code for the particular object, and only in respect of those objects which are sought to be achieved under Act 43 of 1995, the remedy available under Act 43 of 1995 by way of approaching the Tribunal is available and that will not oust the jurisdiction of the Civil Court under Section 85 of Act 43 of 1995.
40. The submission made by the learned counsel for the petitioner by relying upon Section 66 of Act 43 of 1995 is again a misnomer. Section 66 of Act 43 of 1995, which is as follows:
"Section 66. Powers of appointment and removal of Mutawalli when to be exercised by the State Government:
Whenever a deed of wakf or any decree or order of a court of any scheme of management of any wakf provides that a court or any authority other than a Board may appoint or remove a mutawalli or settle or modify such scheme of management or otherwise exercise superintendence over the wakf, then notwithstanding anything contained in such deed of wakf, decree, order or scheme, such powers aforesaid shall be exercisable by the State Government.
Provided that where a Board has been established, the State Government shall consult the Board before exercising such powers."
enables the Government to exercise its power when a deed of wakf or any decree or order of the Court in respect of any scheme of management of a wakf provides the Court or any authority other than a Board to make appointment or removal of a mutawalli or settle or modify such scheme of management, notwithstanding such power given to the Court or authority and in cases where a Board has been established, the Government shall consult the Board before exercising such powers. This is an extraordinary power of the State Government taking the power of the Wakf Board as well as the Scheme Court and that is not applicable to the facts of the present case at all.
41. The reliance placed by the learned counsel for the petitioner on the judgment in Syed Thajuddin v. Syed Mohideen and others, [2011] 2 MLJ 105 relates to the claim of a person belonging to one of the branches of admitted genealogy to be a mutawalli. That was considered by this Court in revisional jurisdiction and it was held that the power of the Wakf Board in appointing mutawalli should be in accordance with the tenor and spirit of the scheme decree if passed and the Wakf Board by taking a different stand cannot try to nullify or supersede the scheme decree. It was while considering the powers of the Wakf Board under Section 32(g) of Act 43 of 1995, which enables the Wakf Board to appoint and remove mutawallis, the learned Judge has held as follows:
"97.Furthermore, the Wakf Tribunal/trial Court has considered the relative merits of the Revision Petitioner and the 1st Respondent dispassionately and has allowed the application E.A.No.199 of 2006 filed by the 1st Respondent and appointed him as Mutawalli which cannot be found fault with in any manner because of the fact that when Court is seized of the matter and framed the Scheme, it has got power to appoint the person as Mutawalli, in the considered opinion of this Court and added further, this Court also goes to an extent to pertinently point out that the general power of superintendence of the Wakfs by the Wakf Board or its power to appoint Mutawalli as per Section 32(g) of the Act is not to be construed as to nullify or supersede the Scheme Decree passed in O.S.No.10 of 1909 dated 27.03.1923 by the Subordinate Judge, Mayavaram as well as the Judgment in A.S.No.186 of 1923 dated 07.05.1934 passed by this Court and viewed in that perspective, the Civil Revision Petition fails."
That was also a wakf which was recognised under a scheme of the Court, as modified, and a scheme decree was passed under Section 92 of the Code of Civil Procedure and the wakf itself was created as per the Will dedicating the properties. A contention was raised that the wakf was erroneously held to be a private wakf and a scheme was framed in O.S.No.10 of 1909 on the file of the Sub Court, Mayavaram for the administration of a Durgah, which was confirmed in appeal. While holding that the Wakf Board should have approached the Tribunal to decide about the nature of the wakf, the learned Judge has held, correctly in my view, that by exercising the powers under Section 32(g) of Act 43 of 1995, the Wakf Board cannot supersede the scheme framed in a suit, which is in accordance with the Will of the testator who has bequeathed the property. It is not known as to how the said judgment is of any help to the petitioner, especially when it is not even the case of the Wakf Board that it is going to supersede the scheme decree.
42. The question to be considered on the facts of the present case is as to whether it is the Wakf Board which has to act under Act 43 of 1995 in respect of the wakf created by way of Will based on which a scheme has been framed by the Civil Court or the Civil Court for the simple reason that since it has framed the scheme, it should only act as per the scheme in spite of Act 43 of 1995 having come into effect.
43. When that is the only dispute that is to be decided, by virtue of Explanation to Section 32(1) of Act 43 of 1995, it has been made abundantly clear that the wakf includes a scheme made by the Court and that explanation itself is an answer making it clear that on a conjoint reading with Section 85 of Act 43 of 1995 it is the Wakf Board which has to execute and act as per the terms of the Wakf, which has been created by way of a Will based on which a scheme has been framed by the Scheme Court under Section 92 of the Code of Civil Procedure. Code of Civil Procedure, being a general and procedural law based on which the scheme suit is filed on the basis of a Will executed by the testatrix, is certainly subject to the special law, viz., Act 43 of 1995, which is a personal law in respect of the administration of the wakfs belonging to Mussalmans. By virtue of the specific provision available under the Explanation to Section 32(1) and Section 85 of Act 43 of 1995 creating a bar on the Civil Court, there is absolutely no difficulty to come to a conclusion that it is the Wakf Board which has to enforce and act as per the scheme framed by the Civil Court.
44. Inasmuch as it is clear that the decision arrived at by this Court in C.R.P.(NPD) No.1629 of 2006, dated 16.2.2007 holding the legal position that in respect of the matters relating to the wakf, the Wakf Tribunal alone is the authority and not the Civil Court, has not been altered by the subsequent decision of the Supreme Court in Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, [2010] 6 MLJ 527 (SC), which is totally on a different ground relating to the right of a tenant of a wakf property regarding retention of possession, the reliance placed on by the learned counsel for the petitioner on the decision in Nand Kishore v. State of Punjab, [1995] 6 SCC 614 relating to res judicata has no application. Since the legal position established by the learned Judge in the revision has not been altered, certainly the principle of res judicata is applicable, inasmuch as the issue has been discussed by this Court in the revision threadbare.
45. Furthermore, the issue is relating to the appointment of mutawallis. If the appointment of mutawallis cannot be forming part of the wakf, which is within the powers of the Wakf Board under Act 43 of 1995 which has been discussed thoroughly by the learned Judge in the revision, it is not known as to how the petitioner can maintain the present writ petition, especially by making all the respondents as parties, who are all the parties before the Court in the revision in which an exhaustive decision has been arrived at, which has been confirmed by the Supreme Court, and no one of the respondents can every say that the decision of the Supreme Court is not binding on them.
46. When on the facts of the case not only the Special Leave Petition was dismissed, of course in the admission stage, but the review filed by the seventh respondent as well as the detailed curative petition filed by the seventh respondent stood dismissed by the Supreme Court, certainly none of the respondents can raise the dispute once again and while so, it is not known as to how the petitioner is entitled to raise the dispute when he is not able to explain what locus standi he has got independently. The reliance placed on the judgment in Kunhayammed and others v. State of Kerala and another, [2000] 6 SCC 359 has no application to the facts of the present case.
47. The reliance placed by Mr.M.K.Hidayathullah, learned counsel for the seventeenth respondent, on the decision of the Supreme Court in Gangadhara Palo v. The Revenue Divisional Officer and another, 2011 [2] CTC 451 is also not applicable to the facts of the present case for the reason that for deciding about the doctrine of merger in the light of the right of review under the Code of Civil Procedure, it was held by the Supreme Court that dismissal of the Special Leave Petition without assigning any reason would not amount to merger of the judgment of the High Court and therefore, the review before the High Court is maintainable. It was held that precedent is a decision which lays down some principle of law and any judgment dismissing the Special Leave Petition will not amount to the declaration of law and therefore, there is no merger and in those circumstances, it was held by the Supreme Court that if a review is filed, the same is maintainable. On the facts and circumstances of the present case, we are not dealing with a review from the order of the learned Judge, but a writ petition filed by a third party for the purpose of not applying the provisions of Act 43 of 1995. In any event, inasmuch as I have given various reasons supra, I do not find that it is a fit case where a reconsideration should be given against the view expressed by the learned Judge in the revision.
48. Mr.M.L.Denis, learned counsel for respondents 7 to 9, placed reliance on the decision in Sardar Khan and others v. Syed Najmul Hasan (Seth) and others, 2007 [2] CTC 508, wherein it was held that on a conjoint reading of Sections 7(5) and 85 of Act 43 of 1995 it is clear that in respect of suits or proceedings or appeals or revisions which have commenced before the coming into force of Act 43 of 1995, viz., on 1.1.1996, Act 43 of 1995 is not applicable. In fact, the said decision was considered in the later judgment of the Supreme Court in Board of Wakf, West Bengal v. Anis Fatma Begum and another (Civil Appeal No.5297 of 2004, dated 23.11.2010), wherein the Apex Court has held as follows:
"15. Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.
16. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 6, 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates.
....
21. In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the Civil Court.
22. However, in view of the decision of this Court in Sardar Khan vs. Syed Najmul Hasan (Seth) & Ors. AIR 2007 SC 1447, the Wakf Act will not be applicable to suits/appeals/revisions/proceedings commenced prior to 1.1.1996 when the Wakf Act came into force.
23. Learned counsel for the respondent, however, relied on the decision of this Court in Ramesh Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8 SCALE 698. In the aforesaid decision it was held that eviction proceedings can only be decided by the Civil Court and not by the Wakf Tribunal.
24. The dispute in the present case is not an eviction dispute. Hence, the aforesaid decision in Ramesh Gobindram's case is distinguishable.
25. For the reasons mentioned above, the impugned judgment of the Calcutta High Court cannot be sustained and it is hereby set aside. We hold that only the Wakf Tribunal has jurisdiction in the matter and the parties can approach the Wakf Tribunal, if so advised. The appeal stands allowed. There shall be no order as to costs.", thereby affirming that the Tribunal alone has the jurisdiction even in respect of cases where the wakf deed registered was much before the coming into force of Act 43 of 1995.
49. It is relevant to point out that under Sections 63 and 64 of Act 43 of 1995, which are as follows:
"Section 63.Power to appoint mutawalli in certain cases: When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of deed of the wakf, or where the right of any person to act a mutawalli, is disputed, the Board may appoint any person to as mutawalli for such period and on such condition as it may think fit.
Section 64.Removal of Mutawalli:
(1) Not withstanding anything contained in any other law or the deed of wakf, the Board may remove a mutawalli from his office if such mutawalli-
(a) has been convicted more than once of an offence punishable under section 61; or
(b) has been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or
(c) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a mutawalli; or
(d) is an undischarged insolvent; or
(e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or
(f) is employed as a paid legal practitioner on behalf of ,or against, the wakf; or
(g) has filled without reasonable excuse, to maintain regular accounts for two consecutive years or has failed to submit, in tow consecutive years, the yearly statement of accounts, as required by sub-section (2) of section 46; or
(h) is interested , directly or indirectly, in a subsisting lease in respect of any wakf property, or in any contract made with, or any work being done for, the wakf or is in arrears in respect of any sum due by him to such wakf; or
(i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the wakf or in respect of any money or other wakf property; or
(j) willfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder;
(k) misappropriates or fraudulently deals with the property of the wakf.
(2) The removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the wakf property either as a beneficiary or in any other capacity or his right, if any, as a Sajjadanashin.
(3) No action shall be taken by the Board under sub-section(1) unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board.
(4) A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final.
(5) Where any inquiry under sub-section (3) is proposed, or commenced, against any mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of the wakf, by an order suspend such, mutawalli until the conclusion of the inquiry.
Provided that no suspension for a period exceeding ten days shall be made except after giving the mutawalli a reasonable opportunity of being heard against the proposed action.
(6) Where any appeal is filed by the mutawalli to the Tribunal under sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver to manage the wakf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) appoint a suitable person as receiver to manage the wakf and direct the receiver so appointed to ensure that the customary or religious right s of the mutawalli and of the wakf are safeguarded.
(7) Where a mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the mutawalli to deliver possession of the wakf property to the Board or any office duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the wakf property.
(8) A mutawalli of a wakf removed from his office under this section shall not be eligible for re-appointment as a mutawalli of that wakf for a period of five years from the date of such removal."
powers are given to the Wakf Board for appointment and removal of mutawallis subject to certain conditions stipulated therein. The said power has to be exercised by the Wakf Board in accordance with the Will of the testatrix based on which the scheme has been framed and therefore, the power of the Tribunal, which has been constituted by the Central Act, cannot be, in my considered opinion, taken over by the Civil Court simply because at the time when the Will was executed and the suit was filed for framing the scheme Act 43 of 1995 was not in existence.
50. In Poonam v. Sumit Tanwar, [2010] 4 SCC 460, the Supreme Court has held that if a person is aggrieved by the decision of a competent judicial forum, it is for him to approach the superior forum and remedy is not filing a writ petition under Article 32 of the Constitution of India before the Supreme Court. The relevant portion is as under:
"13. It is a settled legal proposition that the remedy of a person aggrieved by the decision of the competent judicial tribunal is to approach for redress a superior tribunal, if there is any, and that order cannot be circumvented by resorting to an application for a writ under Article 32 of the Constitution. Relief under Article 32 can be for enforcing a right conferred by Part III of the Constitution and only on the proof of infringement thereof. If by adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition under Article 32 of the Constitution is not maintainable. It is not generally assumed that a judicial decision pronounced by a court may violate the fundamental right of a party. Judicial orders passed by the court in or in relation to proceeding pending before it are not amenable to be corrected by issuing a writ under Article 32 of the Constitution. (Vide Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of Madhya Bharat, AIR 1960 SC 768; Ujjam Bai v. State of U.P., AIR 1962 SC 1621 and Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.)
51. The Supreme Court has heavily come down against the re-litigation on the same subject matter holding it as frivolous and abuse of process of court. Inasmuch as respondents 7 to 14 have already adjudicated the matter up to the Supreme Court not only at the time of admission in the Special Leave Petition, but also on the review, apart from the curative petition, the filing of the present writ petition by the petitioner without showing any independent status or right has to be construed to be at the instance of the other respondents, stated above, and this has to be treated as approaching the court again and again indirectly, which has to be discouraged, as it was held by the Supreme Court in K.K.Modi v. K.N.Modi and others, [1998] 3 SCC 573. It is relevant to reproduce paragraphs [43] to [45] of the said decision, which are as follows:
"43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase abuse of the process of the court thus:
This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the courts discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard, [1947] 2 All ER 255 the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the court.
52. It is also relevant to point out at this stage that even under the scheme framed as early as 10.2.1941 there is no exclusion of the Wakf Board. I am of conscious of the fact that at that time Act 43 of 1995 itself has not been in existence, but the concept of wakf in the personal law of Mussalmans has been there, as stated above. Historically, even in the year 1913 there has been a principle culminated as a judicial principle in India with regard to Wakf, which has been hitherto followed based on the judgments of the Privy Council and the customary principles. Therefore, I am of the considered view that the Wakf Board jurisdiction cannot be ousted on the facts and circumstances of the present case.
53. It is no doubt true that the judicial review in the form of public law remedy is available to a large extent under Article 32 of the Constitution of India to the Supreme Court and under Article 226 of the Constitution of India to the High Courts, but such power cannot be made applicable on the facts and circumstances of the present case. It has to be reiterated that the Wakf Board is the authority under Act 43 of 1995 to enforce the wakfs by way of administration and such administration shall be done by the Wakf Board only as per the terms of the wakf. On the facts of the present case, the wakf Fazilathunnissa Begum Sahiba Mosque Endowment was formed on the basis of the Will executed on 30.1.1877, based on which the scheme decree was passed on 10.2.1941. It is nobody's case that the scheme decree is against the contents of the Will. Therefore, the Will and the scheme decree are one and the same. By virtue of Explanation to Section 32(1) of Act 43 of 1995, the said decree becomes a wakf and it is also admitted to be a wakf because it is nobody's case that it is not a wakf and therefore, it is the Wakf Board which has to enforce the contents of the scheme decree in true spirit.
54. As contended by Mr.M.K.Hidayathullah, it is true that if the Court, as an impartial person having been the propounder of the scheme, is entrusted with such duty, there is every possibility for enforcement of the true intent of the donor in its correct sense. But that does not mean that one has to forget about the statutory provisions, especially when the codified law in the form of Act 43 of 1995 has candidly entrusted such function to a body corporate created consisting of eminent people from the community. If in any of the stray instances the Wakf Board thus created either exceeds its jurisdiction or fails to perform its function, one cannot find fault with the statutory provisions or system as such. The mere availability of a better solution in a different manner cannot be a ground for the purpose of throwing away a system which is in existence for a long time. The proper remedy in these circumstances will be to guide such statutory authority to perform its function in a proper manner and that, in my considered view, is the scope of judicial review in a public law remedy.
55. It is astonishing to note that the trustees who were appointed and whose term has come to an end in 1999 have been holding the post even as on date. The reasons, in my considered view, may be that either the parties are unable to approach the Civil Court which has framed the scheme in the appropriate time or there is want of time and mechanism for the Civil Court, which has framed the scheme decree, to have a surveillance of the functioning of the wakf, especially relating to the duties of the trustees in rendering true and proper accounts periodically. If such powers were exercised by the Wakf Board in an appropriate manner, this sought of malady could have been curbed irrespective of the fact as to whether respondents 3 to 6 have either properly maintained or misappropriated the funds of the Mosque Endowment, created from the donation of the property by the large hearted donor with the fond hope and faith and if any of the mutawallis have attempted to usurp the same, they would be committing a grave sin as per the tenets of Prophet, who was the founder of the concept of Wakf. Therefore, there is certain justification on the part of the petitioner, being a Mussalman, to raise his concern about the way in which the functioning of one of the ancient Mosque Endowments in the heart of the city is carried out.
56. Now that the order of the learned Judge in the revision, which has been passed as early as 16.2.2007, has reached finality, I am of the considered view that the avowed object of the trust propounded by Nawab Fazilathunnissa Begum Sahiba has to be given effect to in its proper perspective, which can be possible only by conducting election in a proper manner by the Wakf Board and not by the Scheme Court before which an application in C.M.P.No.944 of 2010 is still pending.
57. For the foregoing reasons, the writ petition fails and the same is dismissed however with a direction to the second respondent Wakf Board to take immediate steps for the purpose of appointing the trustees for the Fazilathunnissa Begum Sahiba Mosque Endowment in accordance with the scheme decree dated 10.2.1941 passed in O.S.No.63 of 1940 on the file of the Principal Judge, City Civil Court, Chennai, which in turn is based on the Will executed by Nawab Fazilathunnissa Begum Sahiba dated 30.1.1877, by giving wide publications and the entire process shall be completed within a period of twelve weeks from the date of receipt of a copy of this order. It is made clear that on the election of the new mutawallis in accordance with law, as stated above, within two weeks thereafter respondents 3 to 6 shall render true and correct accounts in respect of the wakf properties till date to the second respondent and hand over the entire assets to the newly elected mutawallis for proper administration. It is also made clear that if the second respondent Wakf Board finds any mal-administration or mismanagement or misappropriation committed by the erstwhile mutawallis, appropriate action shall be taken in accordance with law against the persons concerned. No costs. Consequently, M.P.No.1 of 2011 is closed.
sasi To:
The Secretary Backward and Most Backward Classes Department State of Tamil Nadu Secretariat, Fort St. George Chennai 600 009